Tackling Standard Of Review For Compelled Corporate Speech

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The U.S. Securities and Exchange Commission is hoping for another bite at the apple in the legal controversy surrounding its conflict minerals rule (“CM rule”). At the same time, an unrelated case raising nearly identical First Amendment issues is currently awaiting rehearing en banc in the D.C. Circuit. The case, American Meat Institute v. U.S. Department of Agriculture, involves an industry challenge to the USDA’s country-of-origin labeling (“COOL”) requirements for meat.

The panel’s decision in American Meat may impact the court’s recent ruling in National Association of Manufacturers (“NAM”) v. SEC, which stayed one of the CM rule’s reporting requirements — that some products be described as “not found to be DRC conflict free” — on First Amendment grounds. On May 29, 2014, the SEC and intervenor Amnesty International petitioned for rehearing en banc of the portion of the NAM opinion addressing First Amendment arguments, and to hold that case in abeyance pending the American Meat decision. Both cases turn on the same question: What is the appropriate standard of review in First Amendment cases involving compelled corporate speech?

Originally published in Law 360 on June 26, 2014.

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Topics:  Conflict Mineral Rules, Country of Origin, Department of Agriculture, En Banc Review, First Amendment, Food Labeling, NAM, Reporting Requirements, SEC, USDA

Published In: Civil Procedure Updates, General Business Updates, Constitutional Law Updates, Securities Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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